The opinion of the court was delivered by: RHOADES
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
Petitioner Emigdio Olmos-Esparza has filed this Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons stated below, the Motion is denied.
On February 2, 1992 federal agents at the United States Border Control checkpoint in Temedula inspected Petitioner's vehicle. They discovered five bags, each of which contained a controlled substance. One bag contained 6.041 grams of a substance containing methamphetamine. Another contained 72.3 grams of a substance containing methamphetamine. The remaining three bags collectively contained 1380.8 grams of marijuana.
On February 12, 1992 a federal grand jury returned a two-count indictment against Petitioner. Count one charged him with possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Count two charged him with possession of marijuana with intent to distribute in violation of the same statute. Petitioner pleaded not guilty, and on December 10, 1992 a jury found him guilty of both counts.
Pursuant to the United States Sentencing Quidelines, on May ??, 1994 this Court sentenced Petitioner to 140 months of imprisonment on count one to run concurrently with a sentence of 48 months on count two. Petitioner appealed to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit affirmed the judgment and sentence on April 6, 1995.
On April 18, 1997 Petitioner filed this Motion to Vacate. Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, seeking to have his sentence reduced. On May 8, 1997 Petitioner filed additional papers, supplementing his Motion.
Read with liberality, Petitioner's Motion argues that the Court should reduce his sentence for four reasons. First, Petitioner claims that the Court erred in sentencing by not determining the type of methamphetamine involved in the offense. Petitioner argues that this error was caused partly by ineffective assistance of counsel. Second, Petitioner argues that the Court erred in sentencing by not determining the quantity of drugs Petitioner had intended for personal use rather than distribution. Third, Petitioner argues that the United States Sentending Guidelines' treatment of methamphetamine lacks a rational basis, in violation of the Due Process Clause of the Fifth Amendment. Finally, Petitioner argues that the Court sentenced him for possessing more methamphetamine than he actually had.
The Court will address each of these arguments in turn.
A. Petitioner's Claim That The Court Did Not Determine The Type Of Methamphetamine Involved In The Offense
When this Court sentenced Petitioner, the United States Sentencing Guidelines mandated different penalties for possession of different types of methamphetamine. Specifically, the Guidelines provided more lenient treatment for possession of Levo-methamphetamine ("L-methamphetamine") than for the more potent and more valuable Dextro-methamphetamine ("D-methamphetamine"). See U.S.S.G. § 2D1.1 comment., (n.10) (Nov. 1990).
When & defendant raised the issue of methamphetamine type, a district court was required to determine which type of methamphetamine was involved before imposing sentence. United States v. Scrivner, 114 F.3d 964, 967 (9th Cir. 1997). Consistent with testimony at trial as to the type of methamphetamine involved, this Court sentenced Petitioner using the guidelines for D-methamphetamine.
Although Petitioner did not raise the issue at his sentencing hearing or on direct appeal, he now argues that sufficient information did not exist in the record to establish that the methamphetamine involved in this case was D-methamphetamine.
Petitioner argues that this deficiency was caused by the ineffective assistance of counsel.
The Court will not reach the merits of Petitioner's claim. As discussed below, Petitioner cannot raise this claim in his § 2255 Motion because he did not raise it in an earlier proceeding. Although narrow circumstances sometimes permit arguing an issue that was not raised earlier, those circumstances do not apply here.
1. A § 2255 Petitioner Generally Cannot Argue Nonconstitutional Issues That Were Not Raised Earlier
In most circumstances, "a § 2255 petitioner cannot challenge nonconstitutional sentencing errors if such errors were not challenged in an earlier proceeding." United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996), cert. denied, 138 L. Ed. 2d 203, 117 S. Ct. 2444 (1997). Because "computational errors in a petitioner's presentence report do not give rise to a constitutional issue . . . the issue of L- versus D-methamphetamine . . . may not be raised under § 2255 if it was not raised at sentencing or on direct appeal." Id. Accordingly, because Petitioner did not raise the issue in any previous proceeding, he ordinarily would be barred from raising it now.
2. Petitioner Cannot Establish The Necessary Elements That Would Allow Him To Raise The Issue Now
Despite these principles, Petitioner still can raise the issue if he shows good cause for failing to raise it earlier and prejudice from that failure. Id. (citing Evenstad v. United States, 978 F.2d 1154, 1158 (9th Cir. 1992)). "Establishing the elements of an ineffective assistance of counsel claim normally will meet this cause and prejudice test." Id. (citing United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993)). Here, Petitioner has advanced no potentially valid reason for failing to raise the issue of methamphetamine type other than ineffective assistance of counsel.
Therefore, the question of whether Petitioner can argue his claim now turns on whether Petitioner own establish that his counsel was constitutionally ineffective.
In order to establish a claim of ineffective assistance of counsel, Petitioner must show that (1) "counsel's representation fell below an objective standard of reasonableness"; and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 ...